AS TO THE ADMISSIBILITY OF
Application No. 26165/95
by David Simon LICENCE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 December 1994
by David Simon LICENCE against the United Kingdom and registered on
10 January 1995 under file No. 26165/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1957 and resident in
Warminster. He is represented before the Commission by
Mr. John MacKenzie a solicitor practising in London. The facts as
submitted by the applicant may be summarised as follows.
A. Particular circumstances of the case
On 14 April 1993 the applicant, then a sergeant in the army
stationed in Germany, was charged with drunkenness contrary to
section 43(1) of the Army Act 1955 and (pursuant to section 70(1) of
the Army Act 1955) with grievous bodily harm contrary to the Offences
Against the Person Act 1861.
The Convening Officer, by order dated 14 April 1994, convened a
district court-martial to try the applicant on the charges. The
court-martial took place on 21-28 April 1994 and the applicant was
found guilty of drunkenness, was acquitted on the charge of grievous
bodily harm and was sentenced to be reduced by two ranks to lance
corporal.
By petition dated 29 April 1994 the applicant petitioned the
Confirming Officer against conviction and sentence. He submitted that
there had been a material irregularity in the conduct of the Judge
Advocate, that the Judge Advocate had been wrong in law in relation to
his directions to the court-martial and that the sentence, for various
reasons, was too severe. On 27 May 1994, the applicant's conviction and
sentence were confirmed by the Confirming Officer.
On 11 July 1994 the applicant petitioned the Defence Council
against conviction and sentence making the same submissions to that
body as before the Confirming Officer. By letter dated 9 September 1994
the applicant's legal representative was informed of the decision,
taken by the Army Board, to reject this petition.
B. Relevant domestic law and practice
The Commission refers to the "Relevant domestic law and practice"
contained in the judgment in the Findlay case (Eur. Court HR, Findlay
v. the United Kingdom judgment of 25 February 1997, to be published in
Reports of Judgments and Decisions 1997) and in its report on the Coyne
application (No. 25942/94, Comm. Report 25.6.96, unpublished).
The Commission also notes the following as regards the
Courts-Martial Appeal Court ("CMAC"). The CMAC has the same status and,
in essence, the same procedure as the Court of Appeal, Criminal
Division. The judges of this court include ordinary and ex officio
judges of the Court of Appeal and such judges of the High Court as are
nominated by the Lord Chief Justice.
If an appeal petition is rejected by the Army Board an appellant
may apply to a single judge of the CMAC (and, if necessary, also to the
full court) for leave to appeal against conviction to that court.
The CMAC must allow the appeal against conviction if it considers
that the finding of the court-martial is, under all the circumstances
of the case, unsafe or unsatisfactory or involves a wrong decision on
a question of law. The appeal must also be allowed if there was a
material irregularity in the course of the trial. In any other case the
CMAC must dismiss the appeal.
If the CMAC allows an appeal against conviction it must quash the
conviction, although, on the quashing of a conviction, the CMAC's power
to authorise a new trial may come into operation.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
he was denied a fair and public hearing by an independent and impartial
tribunal established by law.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 December 1994 and was
registered on 10 January 1995.
On 28 February 1995 the Commission decided to communicate the
application.
On 2 July 1996 the Commission decided to request the Government's
observations. In their letter received on 7 November 1996 the
Government stated that they have no observations on the admissibility
of the application.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention that he was denied a fair hearing by an independent and
impartial tribunal established by law. The Government have no
observations on the admissibility of the applicant's complaints.
The Commission recalls that, pursuant to Article 26 (Art. 26) of
the Convention, it is only competent to consider complaints after all
domestic remedies have been exhausted according to the generally
recognised rules of international law.
In this respect the Commission notes that after the rejection of
his petition to the Defence Council the applicant did not then proceed
to apply for leave to appeal to the CMAC. In this respect, the
Commission considers that the grounds, upon which the applicant's
petitions to the Confirming Officer and to the Defence Council were
based, constituted grounds of appeal which the CMAC is competent to
consider. It further notes that the CMAC can, if it finds in the
appellant's favour on such grounds, quash the conviction. In addition,
the Commission recalls that a similar application was declared
inadmissible where the applicant failed to make any application for
leave to appeal to the CMAC (No. 32821/96, Dec. 17.1.97, unpublished).
In such circumstances, the Commission considers that, by failing
to apply to the CMAC for leave to appeal to that court, the applicant
failed to exhaust domestic remedies within the meaning of Article 26
of the Convention and the Commission must therefore declare the
application inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of
the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy